A federal court in the District of Massachusetts has granted summary judgment to the Women’s Professional Football League and others, which were defending themselves against a breach of contract, trademark and defamation claims from a jilted team owner.
The court, generally, found plenty of holes in the plaintiff’s claims, and thus ruled for the defendants.
The impetus for the dispute was the league’s decision in March 2004 to expel the New England Storm, LLC (Storm) from the league
Melissa Korpacz, the owner of the Storm, sued on behalf of herself and the team, claiming trademark infringement, breach of contract, defamation and other torts.
The court first addressed the plaintiff’s allegation of “false designation of origin in violation of 15 U.S.C. § 1125(a).” Specifically, the plaintiff had claimed that since its expulsion from the WPFL, the defendants have “used without permission certain marks owned by Korpacz in a manner likely to cause confusion.”
The court found that the plaintiff failed on multiple fronts, including a failure to “prove actual harm, such as the diversion of sales to the defendant… . Aktiebolaget Electrolux v. Armatron Int’l Inc., 999 F.2d 1, 5 (1st Cir. 1993)” The court added that the plaintiff had not “come close to making this additional showing,” noting that she had “failed to put forth any evidence of actual damages arising from defendants’ use of the disputed marks.” It further described it as “puzzling” that the plaintiff asserted rights to the logo, “since the WPFL is the registered trademark owner.
“… Even assuming defendants were never owners of the marks, Korpacz’s email essentially acquiesced in their use of the marks, which would likewise bar any infringement action against them. See 15 U.S.C. § 1115(b)(9) (equitable doctrine of acquiescence applies in infringement actions)
“Because no reasonable jury could find that defendants infringed either the WPFL logo (which they own) or the football-eyes logo and accompanying slogan (which they were invited to use), summary judgment is allowed on Count I.”
Next, the court turned to the plaintiff’s breach of contract, tortious interference with advantageous business relationships, and tortious interference with contractual relationship claims.
The plaintiff specifically charged that the WPFL breached the member license agreement “through various violations of the WPFL bylaws and through the wrongful expulsion” of the plaintiff from the WPFL.
The court held, however, that the plaintiff did not demonstrate “damages in the form of lost profits-the usual measure of damages in a breach of contract and tortious interference actions. Lost profits must be shown with reasonable certainty, though mathematical precision is not required. E.g., Herbert A. Sullivan, Inc. v. Utica Mut. Ins. Co., 439 Mass. 387, 413, 788 N.E.2d 522 (2003); Edmunds v. Sanders, 2 S.W.3d 697, 705 (Tex. App. 1999).”
Korpacz also alleged that she was entitled to recover for emotional distress or pain and suffering. The court concluded otherwise, noting that such damages in Texas “are unavailable in tortious interference cases, see Creditwatch, Inc. v. Jackson, 157 S.W.3d 814, 817, 48 Tex. Sup. Ct. J. 425 & n.22 (Tex. 2005), while in Massachusetts, such damages are available only where ‘actual damage to an economic relationship or prospective relationship’ is shown, see Ratner v. Noble, 35 Mass. App. Ct. 137, 617 N.E.2d 649, 650 (Mass. App. 1993). No such showing has been made here.”
“Defendants are therefore entitled to summary judgment on these counts.”
Turning to the defamation claim, the court noted that two categories of statements were at issue: the notice of charges against the plaintiff and the various other WPFL notices and emails among WPFL members.
The court found that under both Massachusetts and Texas defamation law, the defendants may assert a qualified privilege where the publisher and recipient have a common interest, such as a shared business interest, and the communication is “of a kind reasonably calculated to further it. Catrone v. Thoroughbred Racing Ass’ns of North Am., Inc., 727 F. Supp. 717, 724 (D. Mass. 1989); see also Houston v. Grocers Supply Co., Inc., 625 S.W.2d 798, 800 (Tex. App. 1981).
“In this case, the WPFL Commissioner and the WPFL members shared an interest in the successful governance of the WPFL and the resolution of disciplinary problems. A qualified privilege therefore attached to the Notice. A defendant may of course lose the qualified privilege if the publication was reckless or malicious, see Catrone, 727 F. Supp. at 724; Houston, 625 S.W.2d at 800, but no such evidence exists here.”
The rest of the defamation claim centered on a February 26, 2004 email from a WPFL member to the Commissioner, “describing in somewhat parodic fashion the cycle of enthusiasm and disillusionment experienced by various team members in their relationships with Korpacz. (Pls.’ Opp., Exs. 13). The primary difficulty with this email is that it falls outside the scope of the defamation alleged in the amended complaint.”
This inconsistency means that for the plaintiff to challenge such statements it must amend its complaint, rather than attach documents to summary judgment papers.
“I knew the WPFL would come out victorious,” former WPFL Commissioner Lisa Vessey, who was in the seat of Commissioner at the time of the expulsion, said in a statement.
“We had phenomenal legal representation, and we are very grateful for all the hours Brian Gross and his team put in to win this case” added WPFL Executive Director Dawn Berndt.
“It was an absolute victory across the board,” said Carlton Wilde, one of the WPFL’s team of attorneys.
Melissa A. Korpacz and New England Storm, LLC v. Women’s Professional Football League, et al.; D. Mass.; Civil Action No. 04-10735-RWZ; 1/ 27/06
Attorneys of Record: (for plaintiff) Kevin Gannon, Thomas C. O’Konski, Cesari & McKenna, LLP, Boston, MA. (for defendant) Brian D. Gross, Cooley, Manion & Jones, PC, Boston, MA; Carlton D. Wilde, Jr., Franklin, Cardwell & Jones, P.C., Houston, TX; Kerri L. McComiskey, Patrick S. Tracey, Cooley Manion Jones LLP, Boston, MA.
Nicholas Lifton & Taylor, Decatur, IL.
